Is it all spamming or what?

E-marketing The sending of commercial
e-mails is due to new EU regulations and the Swiss
What conditions must be met in the future? Commercial e-mails today represent
on the one hand an annoying problem for e-mail users, but on the other hand also
is an indispensable element of e-marketing. This means that
It has also become unrealistic to simply send commercial e-mails
generally forbidden. Rather, rules should be established on how
E-marketing via e-mail can be practiced in a generally acceptable way
can. In Switzerland and in the important market for Swiss companies
market of the European Union, legislators and courts in the
the legal framework conditions for the commercialization of the
communication via e-mail relatively clearly defined, so that it is possible to
has become generally valid statements about the legal
Requirements for sending commercial e-mails in the
Switzerland and the EU.

Spam or e-marketing?
Today, spam or spamming is generally defined as the mass mailing of
e-mails that are sent for commercial purposes, but without
at the express request of the recipients or without a prior
there was a business relationship between the sender and the recipient
would have. There is no legal definition for this.
The term spam comes from the USA and originates from the brand "Spam"
(spiced ham, canned meat) from the American food manufacturer
Hormel Foods. Spam became the term for unsolicited e-mails
on the detour via a sketch by the British comedy troupe Monty
Python, in which a group of Vikings sing loudly in praise of Spam and thus
the entertainment in the small restaurant, an effect that
also have spam mails on a regular basis. On the other hand, the legal
Sending commercial e-mails as part of e-marketing. Due to
new provisions in the EU and the latest case law in Switzerland
it has become tricky for companies to send commercial e-mails.
send. What are the new rules?

Law in Switzerland ...
For the sending of commercial e-mails in Switzerland, the
Unfair Competition Act (UWG, SR 241) and the Data Protection Act (DSG, SR
235.1) provides the legal basis. The corresponding principles of the
The Fairness Commission details the law and agrees with it in the
essentially the same.
The aim of fair competition law is to ensure a fair and transparent
market. This means that for the legal shipment of
commercial e-mails in Switzerland, the principle of fairness and the
principle of transparency. The principle of fairness
prohibits the sending of commercial e-mails to persons who send such
explicitly do not wish to enter into a business relationship with
exists. Recipients of commercial e-mails, who once have their
have given their explicit consent, and those with whom a
business relationship, there must also always be the possibility of
to stop receiving commercial e-mails in the future.
(the so-called opt-out principle). The principle of
Transparency requires that commercial e-mails are recognizable as such.
and that their senders are recognizable and readily
is identifiable.
The purpose of the Data Protection Act is to protect the privacy of
natural persons and legal entities. In the age of
information society, their personal data in particular must also be
protected, i.e. information that allows conclusions to be drawn about a
person. According to the latest case law of the Federal
Data Protection Commission (EDSK), this also includes e-mail addresses,
even if the address itself does not allow any (clear) conclusions to be drawn about
a person, such as [email protected]. This
The reason given by the EDSK is that an e-mail address is
a communication channel that always leads to one person. So that
the EDPB considers itself responsible, also in the context of data protection
to set guidelines for the commercial sending of e-mails.
The introduction of the so-called
opt-in principle, which replaces the opt-out principle. This means that
no more commercial e-mails will be sent in Switzerland in the future
whose addressees are not authorized to receive such e-mails.
have consented to this or with whom no agreement has already been
business relationship existed; in the case of the latter, the delivery of
commercial e-mails are only permitted if they allow the receipt of
do not explicitly reject commercial e-mails.

... and in the EU area
If commercial e-mails are sent to the EU area or
If they are presumably received or read there, the
corresponding EU legal bases and their implementation in the
corresponding national law must be observed.
The commercial sending of e-mails in the EU is primarily
Directive on privacy and electronic communications (2002/58/EC)
regulated. In Germany, Switzerland's most important EU export country
the directive into the Fair Trading Act, the Teleservices Act and the
Teleservices Data Protection Act. A ruling by the German
Federal Court of Justice outlines the problem in more detail. In
In Germany, as in the rest of the EU, the opt-in principle applies.
As in Switzerland, commercial e-mails are also permitted in Germany.
not be sent to addressees who are not authorized to receive such
e-mails or with whom you have not agreed before sending them.
a business relationship already existed.    

Ueli Grüter
Ueli Grüter, LLM, is an attorney at the law firm Grüter Schneider
& Partner, Zurich/Lucerne, and Schneider Feldmann AG, Zurich/Lucerne,
and lecturer in communications and technology law at the
University of Applied Sciences of Central Switzerland.